MA: Only men in vicinity of shooting call could be stopped

Two police officers who were cruising the streets during a snow storm had not seen anybody all night, and they passed by two men with hoodies walking who looked away from him as he passed. Just then they heard a radio call of a shooting within 100′ of where they were. They turned and went back to them, and when confronted, one of them dropped a dark object to the ground which could have been a gun. A struggle ensued. The stop and use of force was based on reasonable suspicion. Commonwealth v. McKoy, 83 Mass. App. Ct. 309, 983 N.E.2d 719 (2013):

The officers turned around and encountered the two men about fifty yards from where they first saw them. Both men still had their hands inside their pockets, holding them up against their waists. Because of the nature of the call, the fact that somebody had just been shot, and the probability that a firearm was somewhere close by, Officer Spillane drew his weapon and pointed at the subjects as he got out of the cruiser. Officer Lonergan also exited the vehicle and asked the men to take their hands out of their pockets. As the defendant moved his hand, “a large item” fell to the darkened ground. The other man, Antoine McKoy, the defendant’s brother as it turned out, began to backpedal and only removed one hand, keeping the other in his pocket. Antoine made several motions as if he was trying to get something out of his pocket, and then ran away. At this point, Officer Lonergan also drew his weapon as Officer Spillane chased after Antoine.

. . .

Here, it was reasonable for Officer Spillane to take out and point his weapon at the outset of the encounter. There had been a report of a shooting; the address where the shooting had taken place had a past shooting associated with it; it was dark; and the two individuals, one of whom was very large, had their hands in their pockets. Additionally, they were coming from the direction of the shooting location and were the only people out at the time. An officer is entitled to take reasonable precaution for his own safety if the facts warrant a reasonable person believing the suspect to be armed. See Commonwealth v. Alvarado, 427 Mass. 277, 693 N.E.2d 131 (1998). “The Constitution does not require officers ‘to gamble with their personal safety,’ and police officers conducting a threshold inquiry may take reasonable precautions, including drawing their weapons, when the circumstances give rise to legitimate safety concerns.” Commonwealth v. Haskell, 438 Mass. 790, 794, 784 N.E.2d 625 (2003), quoting from Commonwealth v. Robbins, 407 Mass. 147, 151-152, 552 N.E.2d 77 (1990).